U.S. v. Thierman

• Decision Date: 08 June 1982
• Docket Number: No. 80-1852,80-1852
• Citation: 678 F.2d 1331
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark A. THIERMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1331

678 F.2d 1331

UNITED STATES of America, Plaintiff-Appellee, v. Mark A. THIERMAN, Defendant-Appellant.

No. 80-1852.

United States Court of Appeals, Ninth Circuit.

Argued May 12, 1981.

Submitted Aug. 14, 1981.

Decided June 8, 1982.

Marshall D. Tandy, Tucson, Ariz., for defendant-appellant.

Rhonda L. Repp, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee; Gerald Frank, Asst. U. S. Atty., Tucson, Ariz., on brief.

Before CHOY and WALLACE, Circuit Judges, and WYATT, ^* District Judge.

CHOY, Circuit Judge:

Thierman was sentenced to five years imprisonment for burglarizing a post office building, 18 U.S.C. § 2115, and for several other offenses. His principal claim on appeal is that the admission of his confession violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. ¹ We affirm Thierman's convictions.

I

On May 1, 1980, the Pima County Sheriff's Department secured a warrant to search Thierman's apartment. Thierman was suspected of involvement in several crimes, including a credit-card fraud and four post-office burglaries. At about 11 p.m., while en route to Thierman's apartment to execute the warrant, Detective Barkman and Sergeant Pedersen saw Thierman driving in the opposite direction. They stopped Thierman, handcuffed him, and read him his Miranda rights. Thierman indicated that he understood his rights and, when asked by the police if he would waive them, said that the police could ask him questions and that he would respond to the ones he wanted to answer. In answering several questions about his apartment and his friends, Thierman appears to have given what are best characterized as half-truths.

The police then proceeded with Thierman to his apartment to execute the warrant. In the apartment, police found large rolls of postage stamps in amounts similar to those taken in the post office robberies, as well as equipment which had been used as part of the credit-card fraud. Subsequently, they were joined by inspectors of the United States Postal Service, who had obtained a federal search warrant. At about 2:40 a.m., one of the federal inspectors read Thierman his Miranda rights again and began to question him. Thierman stated that he did not mind talking but did not want to talk about the credit-card fraud.

Detective Barkman then informed Thierman that the police knew exactly what he had been doing and wanted to locate over $100,000 in money orders that had been stolen in the post-office burglaries. He told Thierman, in no uncertain terms, that, if Thierman did not start telling the truth, Barkman intended to continue his investigation until the money orders were located. Barkman told Thierman that the police would find the money orders with or without his help and would begin that night by talking to his girl friend, Pat, his family and his friends. When Thierman asked, "Can we talk about it tomorrow?," Barkman replied that he wanted the money orders that night because he did not want the money orders disposed of or lost. Thierman responded that he preferred to turn over the money orders the next morning after he had spoken with his attorney. As soon as Thierman mentioned his attorney, Barkman ceased the questioning and said to one of the other officers, "That's it, ... let's go talk to the girl."

As the officers turned to go, Thierman stopped them and told Barkman that he would turn over the money orders in the morning if Pat were left out of it. Thierman told Barkman that Pat did not have the money orders and was not involved. Barkman reiterated that he wanted the money orders that night. Thierman responded that he would lead them to the money orders if the police would promise not to prosecute the person who had them. This was followed by a lengthy conversation concerning the status of the person who had the money orders and whether some type of deal could be made. A telephone call was placed to an Assistant United States Attorney who agreed only to consider a recommendation by the police that the person not be prosecuted.

When Thierman learned that the police could not guarantee that the other person would not be prosecuted, he said that he wanted to call his lawyer. Although the record is not clear on the sequence of events that followed, it appears that Thierman's roommate had been present in the apartment until shortly before the police had called the United States Attorney when he left and called Thierman's lawyer. The roommate apparently told Thierman that the lawyer had recommended that Thierman remain silent until the next morning when the lawyer would contact Thierman.

Thierman then called his lawyer directly. Barkman told Thierman to advise his lawyer that police officers were present, and Thierman did so. After Thierman's conversation with his lawyer, either Thierman gave the telephone to Barkman or Barkman called the lawyer back. The attorney explained to Barkman that, although he was sympathetic with the officers' desire to secure the money orders that night, he had advised Thierman not to talk without an attorney present.

After the conversations with the lawyer, Thierman told the police that he was not going to talk until the next morning when his attorney was present. At that point, Barkman went to Pat's apartment to interrogate her.

Several officers remained behind in Thierman's apartment. The record shows that no one asked Thierman any questions. The officers discussed in Thierman's presence, however, that they were going to have to contact Thierman's family, friends and acquaintances about the case. During the course of the conversation, one of the officers apparently stated that it was too bad that Pat had to become involved.

After several minutes, Thierman told Pedersen that he would like to talk to Barkman again. Pedersen went to Pat's apartment and brought Barkman back. Barkman and Thierman spoke alone, in a separate room. Thierman wanted another explanation of the arrangement the United States Attorney had offered. He indicated again that he did not want to get anybody else in trouble, especially Pat. Thierman told Barkman that a woman had been involved in one of the robberies, but that it was not Pat. After some discussion involving this subject, Thierman stated that although his lawyer would "kill him," he would lead the police to the money orders, if it could be done "his" way.

After the police recovered the money orders from Thierman's brother, they took Thierman to the police station to give a statement. He made a taped statement at about 5:30 a.m., confessing to the burglaries for which he was subsequently charged and convicted. He indicated on tape that his statement was given voluntarily and without coercion. Later, however, he testified that he had lied about this to protect Pat, and that his statement had been "coerced" by the threat of Pat becoming a suspect in the case.

II

Thierman contends that his Miranda rights were violated because he was interrogated by the police after he had invoked his right to have counsel present, and because he was questioned after he had asserted his right to remain silent. After holding a hearing on the motion to suppress the confession and after examining, with the aid of supplemental briefs, the application of the then recently-decided Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1979), the district judge denied Thierman's motion to suppress his confession. The court held that the police officers' comments after Thierman had invoked his right to counsel "merely reiterated the obvious," did not amount to any interrogation, and were even less evocative than those in Innis.

III

We use the clearly-erroneous standard to review the district court's determination of whether police conduct subsequent to arrest constitutes "interrogation." United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981). On this crucial factual determination which must be made in light of all the circumstances in the case, id., we will not lightly substitute our judgment for that of the district judge, who can better evaluate the facts and the often conflicting inferences that may be drawn therefrom. After carefully reviewing the record, we cannot say that the trial court's determination is clearly erroneous. Rather, Thierman's confession appears to have been the result of an exchange initiated by him within the meaning of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). ²

IV

In Miranda, the Supreme Court determined that the Constitution requires custodial interrogation to be preceded by, inter alia, advice to the accused of the right to remain silent and also of the right to have an attorney present during interrogation. 384 U.S. at 479, 86 S.Ct. at 1630. If an accused indicates a desire to remain silent, the interrogation must cease; if an accused requests counsel, the interrogation must cease until his attorney is present. Id. at 473-74, 86 S.Ct. at 1627-28. However, Miranda does not mean that once these rights are asserted that they may not be waived later. See Edwards v. Arizona, 451 U.S. at 484, 101 S.Ct. at 1884; United States v. Skinner, 667 F.2d 1306, 1309 (9th Cir. 1982).

Interrogation includes not only express questioning by police but also its functional equivalent, i.e., "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1979). Thus, police statements or actions constitute interrogation unless they were either not reasonably likely to elicit an incriminating response or normally attendant to arrest and custody. ³

Although courts focus primarily on the perceptions of the suspect in determining whether police action is reasonably likely to elicit an incriminating response, the intent of...